Appeal from a decision of the United States District Court for the District of Connecticut, (Robert C. Zampano, Judge) denying defendant Police Superintendent's motion for summary judgment on grounds of official immunity. We affirm as to plaintiff's First Amendment claims but reverse with regard to qualified immunity from the due process claims.
Meskill and Winter, Circuit Judges, and Morris E. Lasker,*fn* District Judge.
This appeal follows the denial of immunity on a motion for summary judgment by the defendant, Joseph Walsh. The litigation concerns Walsh's actions as the Superintendent of the Bridgeport, Connecticut, Police Department, with regard to plaintiff, John Dobosz, an officer on that force. Dobosz alleges that Walsh violated his rights under the First and Fourteenth Amendments to the Constitution by suspending him without notice, cause or an opportunity to give his side of the controversy, by subjecting Dobosz to a series of punitive transfers and reassignments, and by allowing or encouraging a department-wide campaign of harassment against him. Dobosz alleges that these acts were in retaliation for his cooperation with federal officials investigating the shooting of a youth by another Bridgeport officer and his testifying against that officer in a federal criminal prosecution.
Walsh has twice sought summary judgment. His first motion asserted that Dobosz had not been deprived of any constitutionally protected liberty or property interest. Summary judgment was denied. By a renewed motion, Walsh claimed that he was shielded from liability by absolute or qualified immunity and that Section 1983 did not impose the respondeat superior liability necessary to support Dobosz's harassment theory. This is an appeal from the denial of that motion. We reject the claim of absolute immunity. We hold, however, that Walsh has qualified immunity from Dobosz's due process claims but no immunity from the First Amendment retaliation claim.
We view the evidence in the light most favorable to the plaintiff. John Dobosz has been employed as a police officer by the City of Bridgeport since 1971. On July 6, 1977, while on duty, he happened upon the site at which Officer Robert Fitzgerald, also of the Bridgeport Police, had just shot a teenage male. After asking Fitzgerald what had happened, Dobosz left the scene for a moment. He claims that when he returned, there was a knife lying next to the boy's body that he had not observed when he first viewed the victim. Dobosz believed that the knife was a "throw down" weapon placed near the youth after the shooting in order to create a bogus self-defense justification. However, Dobosz was not questioned by anyone in the department about the shooting anytime in its immediate aftermath.
The killing subsequently came under investigation by federal officials. Dobosz was contacted by federal investigators in early 1981 and cooperated with them. This cooperation was for a time unknown to either Superintendent Walsh or the Department. In June 1981, however, Bridgeport police officials learned that Dobosz had testified before a federal grand jury. On June 24, Dobosz was ordered to report to Inspector Anthony Fabrizi, Walsh's assistant, for an interview regarding the Fitzgerald matter. At that interview, he gave a sworn statement regarding the shooting. He was also questioned about the content of his grand jury testimony and about the possibility that he had been "wired" to record the session with Fabrizi. He refused to answer these questions.
Shortly after the meeting with Fabrizi, Dobosz experienced several incidents of harassment. His car was vandalized in the police parking lot. Various offensive notations also appeared next to his name on the overtime list posted in the station, including "rat", "dead man", and "FBI," as well as swastika symbols. He also received nuisance phone calls at his home. Dobosz lodged formal departmental complaints concerning these incidents.
On November 18, 1981, Dobosz was called to testify as a witness in Officer Fitzgerald's criminal trial for civil rights violations in the federal district court. Superintendent Walsh was present in the courtroom, as were several members of the Bridgeport Police Department. Dobosz testified that he believed that the killing of the youth was unnecessary and that the knife discovered near the victim was a "throw down" weapon.
On cross-examination, defense counsel interrogated Dobosz regarding the answers he had given to Inspector Fabrizi in the June 24 interview. Specifically, he pressed him regarding the description he had given of his own investigation of the scene. Dobosz states that, while giving this testimony, he was highly agitated, nervous and distracted by numerous hostile "gestures" made by officers supportive of Fitzgerald. Much of the present dispute arises out of the following testimony by Dobosz:
Q. Do you remember, sir, this question and answer in your statement under oath to Inspector Fabrizi on June 24, 1981, page 5:
"Question: Did you at either of the times you were near the body check around the base of either of the two trees?"
A. Yes, I made that statement to him.
Q. And it was under oath, correct?
Q. You swore--excuse me. It was under ...